BIODIVERSITY AND INTELLECTUAL PROPERTY RIGHTS:

CAN THE TWO CO-EXIST?

 

Ashish Kothari*

R.V.Anuradha**

 

 

Introduction

 

The 1990s have witnessed some intensive debates on the issues of biodiversity and intellectual property rights. The two international treaties around which such debate has been revolving, with significant consequences for public policy relating to intellectual property rights[1], biodiversity and associated knowledge systems, are the Convention on Biological Diversity[2], and the Trade Related Intellectual Property Rights agreement[3] of the World Trade Organisation[4]. The CBD mandates countries to safeguard biodiversity and the traditions and knowledge of those indigenous and other local communities associated with this biodiversity, and lays down the basic elements for access to that biodiversity and the associated knowledge systems. The TRIPs obliges party countries to modify their national IPR regimes to meet much-enhanced international standards, which would have significant implications for biodiversity and the associated knowledge systems. In addition, the World Intellectual Property Organisation[5] and other international institutions are increasingly becoming active on the subject. The singular advantage that the WTO process has for ensuring compliance arises from the fact that it can use the instrument of trade sanctions against an erring member, while the CBD has no compliance mechanisms in place at all.5

 

The essential principles of the CBD most relevant to the debate of IPRs over biological resources, can be summarised as: (a) the state has sovereign control over the biological resources within the limits of their national jurisdiction and shall ensure conservation and sustainable use of the same[7]; (b) while states shall have the authority to determine access to their biological resources, they shall endeavour to create conditions to facilitate such access; (c) such access shall be granted on mutually agreed terms and subject to the prior informed consent of the party providing such access; (d) the benefits of the commercial or other utilsation of the genetic resources shall be shared in  a  fair and equitable way with the party providing such access; (e) the wider application of the knowledge, innovations and practices of indigenous and other local communities shall be done with the approval and involvement of the holders of such knowledge. 

 

The aspects of the TRIPs agreement with implications for the above principles of the CBD are: a) it mandates developing countries to amend their existing regimes for the protection of intellectual property and adopt ones similar to those prevailing in the industrialised countries; (b) it proposes an almost all-encompassing coverage under the patent system, and mandates that patents shall be available for inventions, whether products or processes, in all fields of technology.[8] The coverage so defined is aimed at extending the fields of activity under patents to cover selected forms of life which were hitherto not considered patentable by most countries; (c) As regards plant varieties, the TRIPS Agreement provides that protection has to be provided “either by patents or by an effective sui generis system or by any combination thereof”.

In response to the debate at the international level, at the national levels there is considerable activity. Several countries (Costa Rica, Eritrea, Fiji, India, Mexico, Peru, Philippines) are coming up with legislation, or other measures, which respond to the above treaties or in other ways deal with the relationship between IPRs and biodiversity[9]. Of particular interest to many countries, especially in the 'developing' world, are the attempts to respond to the CBD-TRIPs debate through legislative and administrative measures to achieve the following:

 

·        Protecting indigenous knowledge (traditional and modern) from being "pirated" and used in IPR claims by industrial/commercial interests;

·        Regulating access to biological resources so that historical "theft" of these resources by the more powerful sections of the global society can be stopped, and communities/countries are able to gain control and benefits from their use.

 

Propelling the spurt in activity on this front are the IPR-related scandals that periodically shock the world[10], such as:

 

·        The patenting of ancient herbal remedies, e.g. the US Patent (No. 5401504) given to the healing properties of turmeric, known for centuries to Indians; the US plant patent (No. 5751) on the 'ayahuasca' plant, considered sacred and used for medicinal purposes by Amazon's indigenous peoples; the US plant patent no.5900240 over the use as hypoglycaemic (anti-diabetic) agents of a combination of herbal compositions that have been in use and are also well-documented in Indian scientific literature and ancient texts for the same anti-diabetic properties.

·        The patenting of crop varieties which are similar to those grown for centuries in certain geographical areas, e.g. for varieties of Basmati rice by Rice-Tec Corporation in the US (Patent No. 5663484); Rice-Tec even uses the term Basmati, long used to refer to aromatic rice grown in northern India and Pakistan, to describe its rice varieties;

·        The patenting of human genetic material, e.g. on the human cell line of a Hagahai tribesman from Papua New Guinea (US Patent No. 5,397,696)

·        Plant breeders' rights or patents on entire taxa rather than specific varieties or breeds, e.g. on all transgenic cotton or soybean granted to the company Agracetus; and

·        Patents on technologies that threaten farming systems worldwide, such as US Patent No. 5,723,765 granted to Delta and Pine Land Co., nick-named the Terminator Technology for its potential of stopping plant regeneration after the first generation.

 

All countries are now required to respond to this issue, especially given the following specific decisions taken at international forums:

 

·        Decisions (II/12, III/17, and IV/15) at successive Conferences of the Parties to the CBD, asking for more in-depth understanding, case studies, and other follow-up on the relationship between IPRs and biodiversity in general, and TRIPs and CBD in particular;

·        The upcoming review of the relevant clause (27(3b) of the TRIPs agreement, in late 1999 or early 2000;

·        Decisions (III/17 and IV/9) at the Conferences of Parties to the CBD, and at other forums, to work towards the protection of indigenous and local community knowledge, if need be through alternative IPR regimes.

·        Decision IV/5 arrived at the fourth meeting of the Subsidiary Body on Scientific, Technical and Technological Advice[11] that recommended that recommend that Parties not approve field-testing of such technologies until appropriate scientific information can justify such testing, citing the precautionary approach and lack of reliable data. SBSTTA also invited the FAO, UNESCO, UNEP and other competent organizations to further study the potential impacts of such technologies.

 

This article attempts to do the following:

 

·        Give a brief history of IPRs related to biodiversity;

·        Explore the precise relationship between IPRs and biodiversity;

·        Point out the contradictions between TRIPs and the CBD;

·        Examine the spaces available in existing regimes for appropriate national action; and

·        Point to possible alternative regimes and actions which would help to resolve the conflicts between IPRs and biodiversity.

 

A Brief History of IPRs and Biodiversity

 

IPRs, as the term suggests, are meant to be rights to ideas and information, which are used in new inventions or processes. These rights enable the holder to exclude imitators from marketing such inventions or processes for a specified time; in exchange, the holder is required to disclose the formula or idea behind the product/process. The effect of IPRs is therefore monopoly over commercial exploitation of the idea/information, for a limited period. The stated purpose of IPRs is to stimulate innovation, by offering higher monetary returns than the market otherwise might provide.

 

While IPRs such as copyrights, patents, and trademarks are centuries old, the extension of IPRs to living beings and knowledge/technologies related to them is relatively recent. In 1930, the U.S. Plant Patent Act was passed, which gave IPRs to asexually reproduced plant varieties. Several other countries subsequently extended such or other forms of protection to plant varieties, until in 1961, an International Convention for the Protection of New Varieties of Plants was signed. Most signatories were industrialised countries, who had also formed a Union for the Protection of New Varieties of Plants (UPOV). This treaty came into force in 1968.

 

Plant varieties or breeders' rights (PVRs/PBRs), give the right-holder limited regulatory powers over the marketing of 'their' varieties. Till recently, most countries allowed farmers and other breeders to be exempted from the provisions of such rights, as long as they did not indulge in branded commercial transactions of the varieties. Now, however, after an amendment in 1991, UPOV itself has tightened the monopolistic nature of PVRs/PBRs, and

some countries have substantially removed the exemptions to farmers and breeders.

 

Historically, plant varieties had been exempted from the international patent regime in deference to farmers' traditional practices of saving and exchanging seeds. Idustrialised countries, however, have been debating on the issue of PBRs as a form of monopoly to encourage plant breeding activity. This culminated in the conclusion of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1978, which was amended in 1991 further strengthening the monopolistic hold of plant breeders. The parties to the UPOV Convention, included, until recently, mainly Organization for Economic Co-operation and Development (OECD) countries. The TRIPS Agreement now extends the requirement to protect plant varieties to all World Trade Organization (WTO) Member States.

 

In addition, in many countries, patents with full monopolistic restrictions are now applicable to plant varieties, micro-organisms, and genetically modified animals. In 1972, the U.S. Supreme Court ruled that microbiologist Ananda Chakrabarty's patent claim for a genetically engineered bacterial strain, was permissible. This legitimised the view that anything made by humans and not found in nature was patentable. Genetically altered animals, such as the infamous 'onco-mouse' of Harvard University (bred for cancer research), were also soon given patents. Finally, several patent claims have been made, and some granted, on human genetic material, including on material that has hardly been altered from its natural state. 

 

Till very recently, these trends were restricted to some countries, which could not impose them on others. However, with the signing of the TRIPs agreement, this has changed. TRIPs requires that all signatory countries accept:

 

·        Patenting of micro-organisms and "microbiological processes"; and

·        Some "effective" form of IPRs on plant varieties, either patents or some sui generis (new) version.

 

TRIPs allows countries to exclude animals and plants per se from patentability. However, the provisions above have serious enough implications, for no longer are countries allowed to exclude patenting of life forms altogether (micro-organisms have to be open for patenting). Nor is there likely to be a great amount of flexibility in evolving sui generis systems of plant variety protection, for the term "effective" may well be interpreted by industrial countries to mean a UPOV-like model. Indeed, a series of events in 1999, such as meetings in Africa (February 1999) and Asia (March 1999) hosted by UPOV, WTO or other agencies, have shown that this interpretation is already being imposed on 'developing' countries. The African Intellectual Property Organisation (OAPI), representing 15 Francophone countries, has decided to join UPOV 1991.

 

The history of IPRs shows that the monopolistic hold of governments, corporations and some individuals over biological resources and related knowledge is continuously increasing. As the examples noted in the Introduction show, a substantial amount of this monopolization is built upon, and through the appropriation of, the resources conserved and knowledge generated by indigenous and other local communities.

 

IPRs vs. Biodiversity

 

The CBD has two interesting provisions relating to IPRs. One (Article 16.5) states that Contracting Parties shall cooperate to ensure that IPRs are "supportive of and do not run counter to its (the CBD's) objectives". However, this is "subject to national legislation and international law". Another (Article 22) states that the CBD's provisions will not affect rights and obligations of countries to other "existing international agreements, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity". Read together and in the spirit of the CBD, many people have said there is a basis for countering the runaway march of the IPR regimes described above.

 

But in order for this argument to hold, the actual impacts of IPRs on biodiversity need to be examined. This is a difficult subject, for direct impacts are hard to perceive. However, the following aspects must be considered[12]:

 

·        Current IPR regimes have allowed industrial and commercial interests to appropriate the resources and knowledge of resource-rich but economically poor countries and communities, further 'impoverishing' them or excluding them from technological improvements;

·        IPRs are likely to greatly intensify the trend to homogenize agricultural production and medicinal plant use systems. In agriculture, for instance, any corporation which has spent enormous amounts of money obtaining an IPR, would want to push its varieties in as large an area as possible. The result would be serious displacement of local diversity of crops (though of course IPRs would not be the only factor in this);

·        Increasingly species-wide IPRs (such as those on transgenic cotton and soybean) could stifle even public sector and small-scale private sector crop variety development;

·        Having to pay substantial royalties to industrial countries and corporations could greatly increase the debt burdens of many countries. This could further intensify the environmental and social disruption that is caused when debt repayment measures are taken up, such as the export of natural products; 

·        Farmers who innovate on seeds through re-use, exchange with other farmers, and other means, would be increasingly discouraged from doing so if the tighter regimes that UPOV 1991 sanctifies are imposed on their countries; these regimes would also increase the economic burden on farmers, further discouraging innovation;

·        The ethical aspects of IPRs are serious, and to many communities and people the most important reasons for opposing current IPR regimes: the patenting of life forms (abhorrent to many traditional societies and modern conservationists because of its assumption that nature exists apart from, and solely for the use of, humans); the privatisation of knowledge (repugnant to many societies which held knowledge to largely, though by no means only, in the public domain); and others.

 

 

TRIPs vs. CBD

 

The TRIPs agreement is only likely to greatly intensify the impacts outlined above. In particular, its attempt to homogenise IPR regimes militates against a country's or community's freedom to choose the way in which it wants to deal with the use and protection of knowledge. Equally important, it contains no provision for the protection of indigenous and local community knowledge. Such knowledge, because of its nature, may not be amenable to protection under current IPR regimes. Finally, it has no recognition of the need to equitably share in the benefits of knowledge related to biodiversity. Indeed, it legitimises the conventional inequities that have characterised the interactions between the industrial-commercial use of biodiversity-related knowledge, and the community/citizen use of such knowledge.

 

The negative impacts of TRIPs on the three objectives of the CBD are already beginning to be felt, or threatened, in some countries[13]. There is an urgent need to explore whatever spaces are available within existing regimes, to counter these threats, and to examine alternative regimes which have conservation, sustainable use, and equitable benefit-sharing built into them.

 

TRIPs vs. CBD in India

 

India is currently considering two laws to follow up TRIPs and CBD: the Plant Varieties and Farmers' Rights Bill (PVFRB) and the Biological Diversity Act (BDA), respectively. The PVFRB is supposed to be India's sui generis plant variety protection regime (as per Article 27(3)b of TRIPs). The BDA on the other hand, is being conceived as a law to implement the CBD provisions in relation to access to genetic resource and sharing of benefits from use of such resources. However, in several ways these proposed laws are not in harmony:

 

·        The BDA provides for the protection of local community rights in a broad sense, and recognises that members of the local community, acting through the Biodiversity Management Committees at the local level, shall be consulted before biological resources and the knowledge and information of the community pertaining to the same is accessed. The PVFRB, however, contains only a narrow definition of farmers' rights (the right to reuse, exchange, and sell except as branded product) protected plant varieties; it does not provide for the protection of farmers' own varieties (which are unlikely to pass the stringent tests of novelty, distinctiveness, etc.) but rather focuses on benefiting formal sector plant breeders;

·        Whereas the BDA explicitly provides for benefit-sharing measures with local communities, the PVRFB has no such provision;

·        The BDA also puts in place a mechanism for Prior Informed Consent (PIC) of the concerned authorities, and in consultation with the affected local community where relevant, before genetic resources can be accessed. The PVFRB however does not contain any provision mandating PIC when varieties developed by farmers are accessed for research and commercial purposes. Its provision enabling claims by farmers and communities to claim compensation upon proving they had made a 'significant contribution' to the variety granted protection under the Act, represents an unfair deal for farmers. In effect, it puts in place the grounds for an unfair legal battle between a large breeding corporation with economic and legal resources, and a farmer/farming community who is at a distinct economic disadvantage. 

 

·        The BDA attempts to include local community representatives at various levels of decision-making and has provisions to the effect that the decision making authorities at the state and national levels shall consist of representatives of local communities. The PVRFB, however envisages a bureaucratic management structure with no representation from local farming communities or NGOs;

 

·        Whereas the BDA requires impact assessments of proposed projects that are likely to have adverse impact on biological diversity to ensure that they are in harmony with biodiversity conservation and sustainable use, the PVRFB does not require any such assessments for plant variety protection applications.

 

The contradictions between the two proposed laws are yet to be resolved, though they have been pointed out by NGOs and activists[14].

 

Interestingly, India is not even required to go in immediately for a plant variety protection law; the haste with which the PVFRB has been drafted, points to the influence of the increasingly powerful seed industry (domestic and foreign). Further, the TRIPS itself allows for sui generis system of plant variety protection, the scope and extent of which has not been adequately explored.

Another development on the IPR front in India has been the introduction of a mechanism for grant of Exclusive Marketing Rights (EMRs) for substances that can be used, or are capable of being used as a medicine or drug. Hitherto such substances were left outside the purview of product patents under Indian law. However, the TRIPs Agreement mandated that a product patent regime would have to be eventually introduced in respect of medicines and drugs; Pending such a change, it also mandates the grant of EMRs for such substances. It is of concern that commercial control over the market is assured for a patent-holder and EMR-holder alike with the exclusive rights to sell and distribute. However, an EMR application would not be subject to the same process of scrutiny as a patent application, both by the authority granting patents and the public[15]. India introduced the EMR system under pressure from the US and a WTO ruling directing it to do so. The provisions relating to EMRs, however, do not provide adequate safeguards to address concerns relating to the environment and the knowledge and resources of local and indigenous communities.

 

Space within Existing Regimes

 

Space within TRIPs: Though essentially favouring the further expansion of current IPR regimes, there are some provisions in TRIPs that can be exploited by communities and countries interested in protecting their interests against those of dominant industrial-commercial forces:

·        Article 8 allows for legal measures to protect public health/nutrition, and public interest; though environmental protection is not explicitly built into this, it could be justified as being in "public interest". Unfortunately, this clause is subject to "the provisions of TRIPs", which leaves wide open the interpretation of its applicability;

·        Article 27(2) allows for exclusion, from patentability, inventions whose commercial use needs to be prevented to safeguard against "serious prejudice" to the environment. This is somewhat convoluted, because a country will first need to determine such serious prejudice, justify the prevention of commercial use, and then only be able to justify non-granting of patents;

·        Article 27(3) allows countries to exclude plants and animals from patentability, and also plant varieties, so long as there is some other "effective" form of IPR to such varieties. As mentioned above, what is "effective" is likely to be determined by powerful countries, in which case the almost patent-like regime being advocated by UPOV could well be pushed. However, an exceptionally bold country could well experiment with completely different sui generis systems (see alternatives, below), and face up to any charges that are brought against it at WTO.

·        Article 22 allows for the protection of products which are geographically defined through "geographical indications". This could help protect some products which are known by the specific locations in which they have originated (as has been done, for instance, with champagne). It is debatable whether, for instance, Basmati rice could have been protected in this manner (the name does not derive from any location, but the variety is known to come from a particular geographical area). Countries like India are already considering domestic legislation on this.

 

Space within CBD: As mentioned above, both Article 16(5) and Article 22 provide countries with some maneuverability with regard to IPRs. If indeed a country can establish that IPRs run counter to conservation, sustainable use, and/or equitable benefit-sharing, it should be justified in excluding such IPRs. However, the caveat "subject to national legislation and international law" may well make this difficult, since TRIPs is also "international law". Between TRIPs and the CBD, which holds legal priority? Legal opinion would perhaps be that TRIPs, being the later treaty, would supercede CBD in case of a conflict. However, given that CBD deals much more with the protection of public interest and morality, which TRIPs acknowledges as valid grounds for any measures that countries want to take, it could be argued that CBD's provisions should supercede those of TRIPs. This interface has not yet been tested in any active case in the international arena; only when it does, will we know what interpretation is likely to hold. The CBD, unfortunately, is at a serious disadvantage as it does not yet have a dispute resolution mechanism of its own, unlike the WTO.

 

Perhaps the most crucial provision within CBD may be Article 8j, which requires countries to respect and protect indigenous and local community knowledge, ensure that such communities are asked before using their knowledge for wider society, and further ensure the equitable sharing of benefits arising from such use. Built into this provision are the seeds of a radically different vision of protecting knowledge and generating and sharing benefits from it. Discussions within the CBD forums, including at successive Conferences of Parties, have demonstrated this potential, especially since a wide range of indigenous and local community groups have used the forums to push their case.

 

In this connection, an interesting question would be: can a country challenge another country's IPR regime on the ground that it fails to give adequate protection to informal innovations of indigenous or local communities, and therefore violates Article 8j of the CBD? Can India challenge the US patent regime as a whole, citing examples such as the turmeric patent? The Indian delegation to WTO's Committee on Trade and Environment posed this question in a June 1995 meeting, but reportedly got no specific response. It would be interesting to see how the CBD forums would deal with a charge like this, if brought by one country against another.

 

Changing IPR Regimes: A combination of the relevant clauses in TRIPs and the CBD, can be used to argue for modifications in existing IPR regimes which can help to safeguard public interest. Many people have argued, for instance, that apart from the usual criteria of novelty, etc. that are required of an IPR applicant, the following should also be sought as part of the application:

 

·        Source (country/community/person) of the material or information that has gone into the produce/process for which an IPR is claimed;

·        Proof of prior informed consent from the country and community of origin (as per Articles 15(5) and 8j of the CBD);

·        Details of the benefit-sharing arrangements entered into with the community of origin, wherever applicable (as per Article 8j of the CBD).

 

Countries like India have also suggested that all IPR applications, which are related to biodiversity and biodiversity-related knowledge, should be posted on the Clearing House Mechanism (set up under the CBD), giving concerned countries and communities/persons an opportunity to object if they feel that their rights have been violated. These suggestions have, of course, not yet been accepted at an international level, but are being built into some domestic legislation.

 

Other Spaces: Some other forms of IPRs could be used for protecting indigenous and local community knowledge. These include copyright, and know-how licences (see, for instance, the use of such licences in the case of the Aguaruna people of Peru, Tobin 1997). In addition, a number of other international treaties (though not legally binding) could well be used for countering the threat of current IPR regimes. These include the FAO Undertaking on Plant Genetic Resources, the ILO Convention 169 on indigenous peoples, the International Covenant on Economic, Social and Cultural Rights, the UNESCO/WIPO Model Provisions for National Laws on Protection of Expressions of Folklore, the Universal Declaration of Human Rights, the UN Draft Declaration on the Rights of Indigenous Peoples, and others[16].

 

Perhaps what is most important is to push the precautionary principle at all international levels. Principle 15 of the Rio Declaration provides that, "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation". The Preamble to the CBD also recognises this, in similar words. No serious thought has, however, yet gone into what this could mean under the CBD. What it requires is determination of whether IPRs, even in theory, pose significant threats or not. From the  discussion above, it would appear that they do. In any case, countries and communities could assert that those who want to impose IPR regimes of a certain nature, should be burdened with proving that they do not pose such threats.

 

Alternative regimes

 

Given the extreme uncertainties about how far the spaces within existing IPR/trade regimes can be stretched, there is a clear need for alternative regimes and measures that safeguard the interests of conservation, sustainable use, and equity in the use of biodiversity. These could include:

 

Community-based IPR and resource rights regimes: A number of NGOs and individuals have advocated various forms of intellectual rights regimes which recognise the essentially community-based nature of a lot of biodiversity-related knowledge. At an international level, for instance, an alternative to UPOV has been suggested by Indian NGOs Gene Campaignwhich focuses equally on farmers' and breeders' rights[17]. At national level, groups like the Third World Network, GRAIN, and the Research Foundation for Science, Technology and Ecology, have advocated Community IPR regimes[18]. There have also been suggestions for recognition of concepts such as Traditional Resource Rights, which encompass not just intellectual but also physical resource and cultural rights. Countries like the Philippines are attempting to try such regimes, though the experience is far too short to make any judgements of their efficacy.

 

In addition, WIPO and other international agencies are also studying the possibilities of protecting indigenous and local community knowledge through alternative regimes.

 

Defensive IPRs: An idea worth pursuing is a regime of essentially 'defensive' rights. Such a regime would not allow the right holder to monopolise knowledge or its use, but would guarantee him/her the ability to stop others from appropriating or misusing their knowledge or resources. In other words, no-one would be able to monopolise any resource or knowledge over which such a right has been granted. A country could pass legislation stating that its resources were accessible to all, provided they signed a legally binding agreement that they would not in any way apply restrictive IPRs on these resources, or allow such application by third parties. In addition, appropriate benefit-sharing arrangements could also be worked out in Material or Information Transfer Agreements. Of course, for a country to introduce such a system on its own would not make much sense; this would have to be pushed as an acceptable regime at an international level.

 

There would then be a valid question: what incentives for innovation would such a regime provide? This is dealt with below.

 

Civil society resistance and challenges to dominant IPR regimes: One final strategy for countering the inequitable and destructive trend of current IPR regimes, is the mobilisation of civil society to resist and challenge them. In a number of countries, notably Thailand and India, farmers' groups, NGOs, and scientists have led the struggle against the "piracy" of indigenous and local community knowledge, and the imposition of IPRs on life forms and related knowledge. Legal challenges have been taken to the U.S. and European patent offices (e.g. in the case of turmeric, by the Indian government; in the case of neem tree products, by several NGOs; and in the case of the and sacred "ayahuasca" plant, by a combination of North and South American groups). Farmers in many countries have warned corporations and governments not to bring in IPRs on crop varieties, and have decided to openly violate any such IPRs even if it means being jailed. Indigenous peoples everywhere are acquiring a deeper understanding of IPR regimes, and ways of challenging them when they impinge on their human or resource rights. Though not of the same nature, the Dutch challenge to the recent European Directive on Legal Protection of Biotechnological Inventions (which attempts to make patents on life forms uniformly possible in Europe), is also noteworthy.

 

Another form of resistance is the revival of farming and medicinal systems that allow communities and citizens to be largely self-reliant. This would reduce the dependence on corporate and State-controlled seeds and drugs, amongst other things, and therefore escape the IPR trap altogether. Of course, given existing economic and social structures, and the increasing incursion of the global economy into the everyday lives of even 'remote' communities, this form of resistance is getting more difficult. But there are significant movements that have kept alive its possibilities, e.g. the widespread revival of agro-biodiverse farming systems in India[19] and other parts of South and South-east Asia.

 

Who Will Provide the Incentives for Innovation?

 

One question that is frequently posed to those opposing the global imposition of current IPR regimes is: how will incentives for continuous innovation be provided if IPRs are not provided? This question assumes that the monetary benefits derived from IPRs (by monopolising the market for a period) are the only, or major incentive for innovation. This assumption has not been proven over a long term and in a wide variety of circumstances; a recent study evaluating 65 years of the U.S. Plant Patents Act concluded that the Act has neither helped breeding as a profession nor stimulated species, genetic, or even market diversification (RAFI 1995).

 

For the majority of humanity's existence on earth, innovation has been born of motives other than personal monetary profit: sheer survival, goodwill, social recognition, even power. The fact that Asian farmers could develop, out of one species of rice, hundreds of thousands of varieties to suit a diversity of ecological and social situations, is proof of this. Public sector crop breeding in a number of countries has progressed enormously on the motivation of public welfare. Though by no means universal, the spirit of public welfare and sharing that motivates traditional healers, farmers, and others, is still very much alive in many countries. Detailed studies of community involvement in biodiversity conservation and sustainable use have, indeed, shown that more than money, tenurial security, social recognition and rewards, and other non-monetised incentives are what drives such involvement. To displace this spirit by forcing upon countries and communities a uni-dimensional view of innovation, which is based on the profit motive alone, is to do a grave injustice to humanity.

 

 What is the Way Forward?

 

The arguments made above lead to the following steps, which communities and countries could consider:

 

1.      Pushing for the use of the maximum space allowed in existing IPR regimes, including by widening the definitions of "public interest" to its logical limits, attempting bold sui generis systems of plant variety protection, advocating the use of the precautionary principle in all trade and other transactions, etc.

2.      Advocating that, in the upcoming review of Article 27.3(b) of TRIPs, maximum flexibility be built in, allowing countries the option of fully excluding life forms from patents, and the possibility of developing sui generis systems of plant variety protection which are "effective" from a national or community point of view; 

3.      Studying, in-depth, the relationship between IPRs and biodiversity (and biodiversity-related knowledge), and providing to international forums the results of these studies;

4.      Mandate that IPR regimes require that all IPR applications, pertaining to or derived from biological substances, disclose the source of origin of such substance and related knowledge and information .

5.      Challenging, at international forums, countries and corporations that are known to be violating  Article 8j and other relevant provisions of the CBD; and using Article 16(5) and 22 of the CBD to the maximum extent possible;

6.      Developing an international agreement (or protocol under the CBD) on the protection of indigenous and local community knowledge, and related access/benefit-sharing measures;

7.      Steering the revision of the FAO Undertaking on Plant Genetic Resources, the WIPO initiative on "new beneficiaries", and other processes (including proposed ones like the Database Treaty) into directions which ensure conservation, sustainable use, and equity in benefit-sharing;

8.      Developing and implementing domestic legislation which protects the interests of biodiversity conservation and local community livelihood security.

 

Some of these steps were also advocated at a recent (February 1999) international Workshop on Biodiversity Conservation and Intellectual Property Rights, organised by the Research and Information System on Non-aligned and Developing Countries (RIS), and Kalpavriksh - Environmental Action Group, under the sponsorship of IUCN - The World Conservation Union. While largely arising from the experiences of South Asian countries, the recommendations of this workshop have much wider validity. The recommendations relating to international processes are therefore reproduced as an appendix to this article.


 

References

 

Anuradha, R.V. 1999. Between the CBD and the TRIPs: IPRs and What It Means for Local and Indigenous Communities. Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, 29-31 January, 1999. Draft.

Dhar, B. and Chaturvedi, S. 1999. Implications of the Regime of Intellectual Property Protection for Biodiversity: A Developing Country Perspective. Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, 29-31 January, 1999. Draft.

Dutfield, G. 1998. Background Paper on Intellectual Property Rights in the Context of Seeds and Plant Varieties. IUCN Project on the Convention on Biological Diversity and the International Trade Regime. Draft.

Gene Campaign. 1998. Convention of Farmers and Breeders: A Forum for Implementing Farmers and Breeders Rights in Developing Countries. A Draft Treaty Presented as an Alternative to UPOV. New Delhi.

Glowka, L. 1998. A Guide to Designing Legal Frameworks to Determine Access to Genetic Resources. IUCN - World Conservation Union, Gland, Switzerland.

GRAIN. 1995. Towards a Biodiversity Community Rights Regime. Seedling 12(3): 2-14, October.

Kothari, A. 1997. Conserving India's Agro-biodiversity: Prospects and Policy Implications. Gatekeeper Series no. 65, International Institute of Environment and Development, London.

Kothari, A. 1999. Intellectual Property Rights And Biodiversity: Are India’s Proposed Biodiversity Act And Plant Varieties Act Compatible? Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, 29-31 January, 1999.

Kothari, A. and Anuradha, R.V. 1997. Biodiversity, Intellectual Property Rights, and the GATT Agreement: How to Address the Conflicts? Economic and Political Weekly, XXXII(43): 2814-2820, October 1997. Also in Biopolicy, Vol2, Paper 4, PY97004, 1997, Online Journal, URL: http//www.bdt.org.br/bioline/py.

Nijar, G.S. 1996. In Defence of Indigenous Knowledge and Biodiversity: A Conceptual Framework and Essential Elements of a Rights Regime. Third World Network, Penang.

Posey, D.A. 1996. Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities. IUCN - The World Conservation Union, Gland.

Posey, D.A. and Dutfield, G. 1996. Beyond Intellectual Property: Towards Traditional Resource Rights for Indigenous Peoples and Local Communities. International Development Research Centre, Ottawa.

Shiva, V., Jafri, A.H., Bedi, G., and Holla-Bhar, R. 1997. The Enclosure and Recovery of the Commons. Research Foundation for Science, Technology and Ecology, New Delhi.

Tobin, B. 1997. Know-how Licences: Recognising Indigenous Rights Over Collective Knowledge. Bulletin of the Working Group on Traditional Resource Rights, Winter 1997.


Appendix

 

WORKSHOP ON BIODIVERSITY CONSERVATION AND INTELLECTUAL PROPERTY RIGHTS

New Delhi, 29-31 January, 1999

 

Organised by Research and Information System for Non-Aligned and Other Developing Countries, Kalpavriksh, and IUCN - The World Conservation Union

 

STATEMENT AND RECOMMENDATIONS[20]

 

PREAMBULAR STATEMENT

 

A Workshop on Biodiversity Conservation and Intellectual Property Rights was organised in New Delhi, on 29-31 January 1999, by the Research and Information System on Non-Aligned and Developing Countries (RIS), Kalpavriksh, and IUCN - The World Conservation Union. More than 60 academics, activists, researchers, NGO representatives, government officials, and representatives of industry from India, together with a number of participants from other South Asian countries, Europe and the USA, participated in the Workshop.

 

The major issue that was deliberated upon in the Workshop was the conflicts and complementarities between the Convention on Biological Diversity (CBD) on the one hand, and the elements of the international intellectual property regime, underlined by the World Trade Organization (WTO) in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), on the other. The participants identified specific action points that are required to be taken up in the multilateral forums of CBD or WTO, and in the national context within India and other developing countries, that would further the objectives of the CBD through full use of spaces within existing IPR regimes, through further development and adaptation of these using the review process in-built in the Agreement on TRIPs or, where necessary, through creation of new regimes.

 

The statement and recommended actions below are intended to reflect the range of views expressed at the workshop and to offer a sense of the meeting.

 

There was strong support for the three objectives of the CBD: conservation of biological diversity, sustainable use of its components, and the fair and equitable sharing of the benefits arising from such use. In addition, participants also recognised the immense contribution of traditional knowledge and practices of local and indigenous communities for conservation, and re-affirmed the need for the effective maintenance of such knowledge systems. In relation to the TRIPs Agreement, participants recognised that the objectives of the Agreement, i.e., the protection of IPRs, should provide benefits to both producers and users of technological knowledge in a manner conducive to social and economic welfare in reality. However, concern was expressed that the current IPR regimes, in particular the Agreement on TRIPs, fail to adequately address a number of concerns central to the achievement of the objectives of the CBD. They appear to pose a significant threat to conservation of biodiversity, they do not address a range of equity issues including intergenerational equity, and they render difficult both access to genetic resources and the fair sharing of benefits arising from their use. Perhaps more seriously they fail to recognise and protect traditional systems of knowledge that are needed to meet the objectives of the CBD fully, especially the local and community knowledge and the knowledge systems of indigenous peoples. There is therefore a need to achieve necessary amendments to existing regimes, and/or develop alternative regimes to address these concerns.

 

The workshop identified the following actions as steps to address some of these concerns:

 

RECOMMENDATIONS FOR ACTION

 

1. Recommendations Relating to International Regimes

 

Current international regimes which have relevance to IPR and biodiversity issues need to be substantially reviewed, and attempts made both to use the spaces available within them and create new spaces and alternative regimes which can help to conserve biodiversity and protect the rights of indigenous and local communities. In particular, actions are needed in the World Trade Organization (WTO), concerning specifically the Agreement on (TRIPs), the Convention on Biological Diversity (CBD), and the other relevant international processes, including those that have been initiated by the World Intellectual Property Organization (WIPO). Besides, the search for alternative international regimes is also important.

 

A.        WORLD TRADE ORGANISATION (SPECIFICALLY, TRIPs)

 

At the level of the WTO, and specifically the TRIPs agreement, the following actions should be taken:

 

1.      An open and transparent process, involving civil society, of reviewing article 27.3(b) in 1999 and the review in 2000 of the TRIPs Agreement overall;

2.      A full consideration of the relevant provisions of the CBD, the FAO Undertaking on Plant Genetic Resources, the ILO Convention 169, the UNESCO/WIPO Guidelines for Protection of Folklore, the UN Draft Declaration on the Rights of Indigenous Peoples, international human rights declarations, and other relevant international treaties and processes, while undertaking the above-mentioned reviews;

3.      An independent and transparent assessment of the environmental and equity implications of WTO in general and TRIPs in particular, with the involvement of civil society and of relevant international bodies relating to the CBD, the FAO and WIPO, and taking in particular the “precautionary principle” enshrined in Agenda 21;

4.      A review of Article 31 of TRIPs to ensure its conformity with the preamble, and articles 7 and 8 of TRIPs,  as well as article 16 of the CBD. The aspects of authorisation for commercial and non-commercial activity under Article 31 should be clarified during such review;

5.      Expansion of, or at the very least maintenance of, the exceptions in Article 27.3(b) of TRIPs, for patenting of life forms; the expansion should ideally exclude micro-organisms, products and processes thereof, from patentability;

6.      The definition of the term 'micro-organism' should not be expanded to cover tissues, cells or cell lines or DNA obtained from higher organisms, including human beings;

7.      Expansion or at the very least maintenance of the sui generis clause relating to plant variety protection, in order to:

(i)                  ensure implementation of article 8(j) of the CBD relating to indigenous and local communities;

(ii)                ensure that full consideration of environmental and ethical concerns about IPRs on life forms are addressed; and

(iii)               allow the completion of a biosafety protocol that establishes minimum international standards for the environmental safety of releases of genetically modified organisms.

8.      Amending the provisions of Article 27.3(b) by either deleting the term “effective” in the context of sui generis systems of plant variety protection, or defining it such that national priority is paramount in the interpretation of the term, including the following:

(i)                  Conservation and sustainable use of biodiversity;

(ii)                Promotion of  traditional lifestyles;

(iii)               Promotion of  food security and health security;

(iv)              Ensuring equitable benefit sharing;

(v)                Invoking the precautionary principle;

(vi)              Respect of the principles of equity and ethics;

9.      Exploring ways of interpreting and implementing TRIPs that help achieve the objectives of the CBD;

10.  Measures to prevent the unilateral pressure by some members to coerce other members to strengthen IPR regimes beyond the TRIPs requirements;

11.  Enhancing the scope of Article 23 of TRIPs to strengthen protection of geographical indications for goods other than wine and spirits, such as Darjeeling tea;

12.  The scope of Article 22 of the TRIPs should be expanded to protect denominations relating to geographic origin, and characteristics associated with a specific region;

13.  Inclusion of requirements (in Article 29 of TRIPs) for disclosure of the genetic resources and the traditional knowledge used in inventions for which IPRs are claimed, the country and community of origin of these resources and knowledge, and proof of consent having been sought of the relevant community and equitable benefit-sharing arrangements having been entered into with them, as required by the CBD;

14.  Steps to ensure that TRIPs implementation and elaboration fulfils all the objectives stated in Article 7.  This should include striking a balance between rights and obligations, a balance that should take into account the objectives of the CBD as well as the principles enunciated at the Earth Summit;

 

B. CONVENTION ON BIOLOGICAL DIVERSITY (CBD)

 

The CBD process should take the following measures:

1.      Assess the relationship of IPRs to access and benefit-sharing provisions, including in the development of guidelines or best practices for achieving equitable benefit-sharing from use of genetic resources. In particular, there should be consideration of mechanisms such as certificates of origin, evidence of prior consent for access to genetic resource, evidence of prior approval of indigenous and local communities for access to traditional knowledge, and disclosure of this evidence in patent applications;

2.      Evaluation of the impacts of international processes relating to IPRs, including TRIPs, on the objectives of Article 8(j) of the CBD;

3.      Development of a protocol on the protection of indigenous and local community knowledge and resource rights;

4.      Providing inputs into the ongoing WIPO processes on “new beneficiaries” which are assessing issues relating to protection of traditional knowledge; and

5.      Development of a code of conduct, or a protocol, on access and benefit-sharing, especially in relation to the resources and knowledge of indigenous and local communities, and of ‘developing’ countries;

These steps could be taken up as concrete points for the inter-sessional process relating to the implementation of Article 8(j), which the CBD COP4 initiated; and of other processes relating to the Biosafety Protocol and the inter-sessional work on access and benefit-sharing.

 

C. OTHER PROCESSES

 

Other international processes relevant to IPRs and biodiversity need to take the following steps:

 

1.      Development of the FAO Undertaking on Plant Genetic Resources, either in itself or as a protocol under the CBD, should incorporate comprehensive protection of indigenous and local community knowledge, along with provisions to conserve biodiversity and  sustainably use biological resources;

2.      Cooperation at the SAARC level to jointly conserve biodiversity, achieve sustainable use, and promote equitable benefit-sharing, especially through appropriate regional agreements;

3.      Ensuring that any agreement on databases (e.g. the proposed Database Treaty) ensures effective control by communities of their knowledge, mechanisms that ensure effective and equitable sharing of benefits with and within communities, and space for communities define the terms by which they control access and require benefit-sharing;

4.      At all international forums, setting up of “intercultural panels” to evaluate the terms of “cross-cultural transactions” by which knowledge relating to biodiversity from one knowledge system is used in another system, including in dispute-resolution processes.

 


* Founder member, Kalpavriksh - Environment Action Group, Aptmt. 5, Shree Dutta Krupa, 908 Deccan Gymkhana, Pune 411004, India, Tel. and fax: 91-20-5654239; Email: [email protected]

** Lawyer and member, Kalpavriksh- Environment Action Group, A 119 Swasthya Vihar, Vikas Marg, New Delhi 110092, India, Tel: 91-11-2058272/ 2053198; Email: [email protected]

 

[1] Hereinafter IPRs

[2] Convention on Biological Diversity, adopted June 5,1992, A/CONF.151/26, 31 ILM 818 (1992) (hereinafter the CBD).

[3] Agreement on Trade Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, 33 I.L.M.81 (1994) (hereinafter the TRIPs agreement).

[4] Hereinafter WTO.

[5] Hereinafter WIPO.

[6] The WTO is armed with an elaborate Dispute Settlement Mechanism that can be effectively used to ensure compliance by member states.

[7] Preamble, art. 3 and art. 6  CBD.

[8] Art.27.1, TRIPs.

[9] See for instance, Lyle Glowka, A Guide To Designing Legal Frameworks To Determine Access To Genetic Resources (1998).

[10] These are well exposed by the series of Communiques and other papers brought out by the Rural Agricultural Foundation International (RAFI), a Canada-based NGO.  RAFI Communiques can be accessed at: http:\\www.rafi.org.

[11] The Subsidiary Body on Scientific, Technical and Technological Advice is constituted under art. 25, CBD.

[12]Ashish Kothari & R.V.Anuradha, Biodiversity, Intellectual Property Rights, and the GATT Agreement: How to Address the Conflicts? Economic and Political Weekly, XXXII(43), 2814, (October 1997). Also in Biopolicy, Vol2, Paper 4, PY97004, 1997, Online Journal, URL: http//www.bdt.org.br/bioline/py.

[13] See, Biswajit Dhar & Sachin Chaturvedi, Implications of the Regime of Intellectual Property Protection for Biodiversity: A Developing Country Perspective, Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, (29-31 January, 1999); R.V.Anuradha, Between the CBD and the TRIPs: IPRs and What It Means for Local and Indigenous Communities, Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, (29-31 January, 1999).

[14] Ashish Kothari, Intellectual Property Rights And Biodiversity: Are India’s Proposed Biodiversity Act And Plant Varieties Act Compatible? Paper presented at Workshop on Biodiversity Conservation and Intellectual Property Regime, RIS/Kalpavriksh/IUCN, New Delhi, (29-31 January, 1999).

 

[15] See art.70(8), TRIPS Agreement.

[16] Darell Posey, Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities (1996).

[17] Gene Campaign, Convention of Farmers and Breeders: A Forum for Implementing Farmers and Breeders Rights in Developing Countries: A Draft Treaty Presented as an Alternative to UPOV. New Delhi (1998)

[18] G.S. Nijar, In Defence of Indigenous Knowledge and Biodiversity: A Conceptual Framework and Essential Elements of a Rights Regime (1996).; GRAIN, Towards a Biodiversity Community Rights Regime,  Seedling 12(3), 2, (October 1997); V. Shiva, A.H. Jafri, G. Bedi, and R. Holla-Bhar, The Enclosure and Recovery of the Commons (1997).

 

 

 

 

[19] ASHISH KOTHARI. CONSERVING INDIA'S AGRO-BIODIVERSITY: PROSPECTS AND POLICY IMPLICATIONS (1997).

[20] This is a reproduction of only that part of the full statement dealing with recommendations for international actions; the rest deals with recommendations for national action in South Asia.